Turner v. State

• Decision Date: 29 October 1930
• Citation: 100 Fla. 1078,130 So. 617
• Parties: TURNER v. STATE.
• Court: Florida Supreme Court

130 So. 617

100 Fla. 1078

TURNER v. STATE.

Florida Supreme Court, Division B.

October 29, 1930

Error to Criminal Court of Record, Hillsborough County; W. Raleigh Petteway, Judge.

James Turner was convicted of falsely pretending to be a police officer and thereby pretending to place a certain person under arrest and demanding bail from him, and also of an attempt to commit robbery, and he brings error.

Reversed.

BROWN J., dissenting.

COUNSEL

Zewadski & Pierce, of Tampa, for plaintiff in error.

Fred H Davis, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.

OPINION

BUFORD J.

The plaintiffs in error were convicted under both counts of an information in two counts.

The first count charged them as follows:

'That James Turner and William Cannon, late of the County of Hillsborough aforesaid, in the State aforesaid, on the 13th day of January in the year of Our Lord, one thousand, nine hundred and thirty, with force and arms at and in the County of Hillsborough aforesaid, did unlawfully, feloniously and falsely assume and pretend to be police officers of the City of Tampa, Hillsborough County, Florida, and did then and there take upon themselves to act as such police officers by pretending to place Joseph H. Eckmeder under arrest, by demanding of the said Joseph H. Eckmeder as a bail bond the sum of Two Hundred and Fifty Dollars in money current in the United States of America, of the value of Two Hundred and Fifty Dollars in money current in the United States of America, a further description of said money being to the Solicitor unknown; the said James Turner and William Cannon not then and there being police officers of the City of Tampa, in Hillsborough County, Florida, and not then and there having any lawful authority to act as Police Officers as aforesaid; and, the said James Turner and William Cannon then and there well knowing that they were not such Police Officers as aforesaid, and that they had not any lawful authority to act as such Police Officers as aforesaid, against the form of the Statute in such case made and provided, to the evil example of all others in the like case offending and against the peace and dignity of the State of Florida.'

The second count charged them as follows:

'That James Turner and William Cannon, late of the County of Hillsborough aforesaid, in the State aforesaid, on the 13th day of January in the year of Our Lord One Thousand Nine Hundred and Thirty, with force and arms at and in the County of Hillsborough aforesaid, did unlawfully and feloniously make an assault on and upon one Joseph H. Eckmeder, and did then and there by force, violence and putting in fear, unlawfully and feloniously attempt to rob, steal and take from the person of the said Joseph H. Eckmeder, Two Hundred and Fifty Dollars in money current in the United States of America, a further description of which is to the Solicitor unknown, of the value of Two Hundred and Fifty Dollars in money current in the United States of America, the money and property of the said Joseph H. Eckmeder, the said James Turner and William Cannot not being then and there armed with a dangerous weapon, against the form of the Statute in such case made and provided, to the evil example of all others in the like case offending, and against the peace and dignity of the State of Florida; wherefore the said Wm. J. Skinner, County Solicitor aforesaid, prosecuting for the State of Florida aforesaid, prays the advice of the Court in the premises and that a capias may be issued forthwith for the arrest of said James Turner and William Cannon, and that they be held for trial under the foregoing information.'

There was no transcript of the evidence included in the bill of exceptions. It is made to appear by the record that the court reporter refused to transcribe the testimony, and that the trial judge declined to order the same transcribed. We assume that the representations made by the record are true. Neither the refusal of the court reporter to transcribe the testimony nor the failure of the trial judge to order the court reporter to perform such duty would constitute grounds of reversible error. We may say, however, in passing, that it was the duty of the court reporter, especially when tendered pay for so doing, to transcribe the testimony as taken at the trial and file it in the office of the clerk of the court, and, upon his railure and refusal to do so, it was the duty of the trial judge to make an order requiring him to perform his duty as an officer of the court when it was shown that the court reporter was present in court and took down the testimony as same was given in stenographic notes, and that he had been tendered full compensation to transcribe and file the same in the office of the clerk of the court. A defendant should not be put to the necessity of applying to another court for a writ of mandamus to compel an officer of the criminal court of record to perform a plain duty which the judge of that court had the right to require him by order to perform.

There are a number of assignments of error. We will consider matters raised by three of such assignments.

There was a motion to quash each count of the information. The first count of the information sufficiently charges an offense under the provisions of section 7532, Comp. Gen. Laws 1927, and, therefore, the motion to quash this count was properly denied. The second count is not sufficient to charge an offense under the provisions of section 7544, Comp. Gen. Laws 1927, connected with section 7158, Comp. Gen. Laws 1927.

In Hogan v. State, 50 Fla. 86, 39 So. 464, 465, 7 Ann. Cas. 139, the court, construing this section and the sufficiency of a charge thereunder, say:

'According to Mr. Bishop this is but the terms of the common law, and seems to require no change from the common-law indictment; but as the act done must be such as the law recognizes as adequate, and because the accused is always entitled to have the particulars of the accusation stated to him, such act must be specifically averred. While not necessary to allege failure in the attempt, it is necessary to set out both the intent and the act. 2 Bish. New Crim. Proc. 86.

"In indictments for attempts the laxity permitted in assaults will not be maintained. * * * But 'attempts' is a term peculiarly indefinite. It has no prescribed legal meaning. It relates from its nature to an unconsummated offense. It covers acts some of which are indictable and some of which are not. * * * At common law such facts must be set forth as show that the attempt is criminal in itself. * * * In an indictment for an attempt to commit a crime, it is essential to aver that the defendant did some act which, directed by a particular intent, to be averred, would have apparently resulted, in the ordinary and likely course of things, in a particular crime.' 1 Whart. Cr. Law (10th Ed.) 190, 192.

'Indictments for attempts to commit crimes must aver the intent and the overt act constituting the attempt. 3 Ency. Pl. & Pr. 98.'

In support of this enunciation, the court cited the following cases:

' State v. Frazier, 53 Kan. 87, 36 P. 58, 42 Am. St. Rep. 274; State v. Russell, 64 Kan. 798, 68 P. 615; Cunningham v. Commonwealth, 88 Va. 37, 13 S.E. 309; Commonwealth v. Clark, 6 Grat. [Va.] 675; Hicks v. Commonwealth, 86 Va. 223, 9 S.E. 1024, 19 Am. St. Rep. 891; Thompson v. People, 96 Ill. 158; Kinningham v. State, 119 Ind. 332, 21 N.E. 911; State v. Wilson, 30 Conn. 500; Randolph v. Commonwealth, 6 Serg. & R. (Pa.) 398; State v. Colvin, 90 N.C. 717; United States v. Ulrici, 3 Dill. 532, Fed. Cas. No. 16,594.'

The motion to quash the second count of the information should have been granted.

There was a motion to disqualify the judge which was as follows:

'Come now James Turner and William Cannon, defendants in the foregoing cause, by their attorneys, Zewadski & Pierce, and move for the disqualification of Honorable W. Raleigh Petteway, Judge of this Court, on account of the prejudice of said judge against these defendants, and suggest that said Judge shall proceed no further herein, and in support of said Motion, attach the following affidavits and Exhibits hereto'

--which was supported by affidavits of the two defendants and by two affidavits, as required under the provisions of section 4341, Comp. Gen. Laws 1927. The evidence of prejudice as set forth in the affidavits was as follows:

'That when W....